It is a time of fear in the face of freedom, a time of an emptying country and swelling cities, a time for the widening of previous roads and the opening of new paths, yet a time when these paths are mined by knowing algorithms of the all-seeing eye. It is the time of the warrior's peace and the miser's charity, when the planting of a seed is an act of conscientious objection. These are the times when maps fade, old landmarks crumble and direction is lost. Forwards is backwards now, so we glance sideways at the strange lands through which we are all passing, knowing for certain only that our destination has disappeared. We are unready to meet these times, but we proceed nonetheless, adapting as we wander, reshaping the Earth with every tread. Behind us we have left the old times, the standard times, the high times. Welcome to the irregular times.

Senator Russell Feingold Speech: Restoring the Rule of Law

On Thursday, September 25, Senator Russell Feingold gave a speech before the Senate that got absolutely no coverage in the papers. Coming in the wake of Constitution Day, it should have; it provides a capstone to a week of hearings held by Senator Feingold to remind us of the constitutional liberties we have lost and chart a course toward their restoration.

To help remedy the failings of the inattentive professional media, let me make it available to you. Here is the transcript of Feingold’s speech, entitled “Restoring the Rule of Law”:

Senator Russell Feingold: Mr. President, last week we celebrated the 221st anniversary of the day in 1787 when 39 members of the Constitutional Convention signed the Constitution in Philadelphia. It is a sad fact, as we consider that anniversary, that for the past 7 1/2 years, and especially since 9/11, the Bush administration has treated the Constitution and the rule of law with a disrespect never before seen in the history of this country.

By now, the public can be excused for being almost numb to new revelations of Government wrongdoing and overreaching. The catalog is really breathtaking, even when immensely complicated and far-reaching programs and events are reduced to simple catch phrases: torture, Guantanamo, ignoring the Geneva Conventions, warrantless wiretapping, data mining, destruction of e-mails, U.S. attorney firings, stonewalling of congressional oversight, abuse of the state secrets doctrine and executive privilege, secret abrogation of Executive orders, signing statements.

This is a shameful legacy that will haunt our country for years to come. That is why I believe so strongly that the next President of the United States–whoever that may be–must pledge his commitment to restoring the rule of law in this country and then take the necessary steps to demonstrate that commitment. That is why, also, I held a hearing last week in the Constitution Subcommittee of the Senate Judiciary Committee asking a range of legal and historical experts exactly what the new President and the new Congress must do to repair the damage done by the current administration to the rule of law.

There can be no dispute that the rule of law is central to our democracy and our system of government. But what does “the rule of law” really mean? Well, as Thomas Paine said in 1776, “In America, the law is king.”

That, of course, was a truly revolutionary concept at a time when, in many places, the kings were the law. But more then 200 years later, we still must struggle to fulfill Paine’s simply stated vision. It is not always easy, nor is it something that, once done, need not be carefully maintained.

Justice Frankfurter wrote that law “is an enveloping and permeating habituation of behavior, reflecting the counsels of reason on the part of those entrusted with power in reconciling the pressures of conflicting interests. Once we conceive ‘the rule of law’ as embracing the whole range of presuppositions on which government is conducted ….. , the relevant question is not, has it been achieved, but, is it conscientiously and systematically pursued.”

The post-September 11 period is not, of course, the first time that the checks and balances of our system of government have been placed under great strain. As Berkeley law professors Daniel Farber and Anne Joseph O’Connell wrote in testimony submitted for the hearing on this topic:

“The greatest constitutional crisis in our history came with the Civil War, which tested the nature of the Union, the scope of presidential power, and the extent of liberty that can survive in war time.”

But as legal scholar Louis Fisher of the Library of Congress described in his testimony, President Lincoln pursued a much different approach than our current President when he believed he needed to act in an extra-constitutional manner to save the Union. He acted openly, and sought Congress’s participation and ultimately approval of his actions.

According to Dr. Fisher, Lincoln took actions we are all familiar with, including withdrawing funds from the Treasury without an appropriation, calling up the troops, placing a blockade on the South, and suspending the writ of habeas corpus. In ordering those actions, Lincoln never claimed to be acting legally or constitutionally and never argued that Article II somehow allowed him to do what he did. Instead, Lincoln admitted to exceeding the constitutional boundaries of his office and therefore needed the sanction of Congress. ….. He recognized that the superior lawmaking body was Congress, not the President.

Now, of course, each era brings its own challenges to the conscientious and systematic pursuit of the rule of law. How the leaders of our government respond to those challenges at the time they occur is, of course, critical. But recognizing that leaders do not always perform perfectly, that not every President is an Abraham Lincoln, the years that follow a crisis are perhaps even more important. As Yale Law School Dean Harold Koh testified at the hearing:

“As difficult as the last 7 years have been, they loom far less important in the grand scheme of things than the next 8, which will determine whether the pendulum of U.S. policy swings back from the extreme place to which it has been pushed, or stays stuck in a ‘new normal’ position under which our policies toward national security, law, and human rights remain wholly subsumed by the ‘War on Terror.'”

I could not agree more.

So the obvious question is: Where do we go from here? One of the most important things that the next President must do, whoever he may be, is take concrete steps to restore the rule of law in this country. He must make sure that the excesses of this administration don’t become so ingrained in our system that they change the very notion of what the law is. And he must recognize that we can protect our national security–in fact, we can do it more effectively–without trampling on the rights of the American people or the rule of law.

That, of course, is much easier said than done. But there is one immediate step that, while it may be viewed as symbolic, is critically important for the next President to take: stating clearly and unequivocally in the inaugural address that he renounces the current administration’s abuses of executive power and that his administration will uphold the rule of law. To be sure, this isn’t the only subject the new president should address, but it is among the most urgent. Where he stands on executive power goes beyond policy and politics and speaks to his respect for the Constitution itself. And a willingness to raise this issue in the inaugural address will send a message, loud and clear, to the American public, to Congress and to every level of government that the days of lawlessness and excess are over.

Thomas Jefferson said this in his first inaugural address:

“The essential principles of our Government form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation ….. [S]hould we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety.”

I hope our next President will echo that sentiment in his inaugural address. Indeed, demonstrating that commitment on day one will go a long way toward reinstating what Ohio State University Law Professor Peter Shane called a “rule of law culture” in government. As he explained in his hearing testimony:

“The written documents of law have to be buttressed by a set of norms, conventional expectations, and routine behaviors that lead officials to behave as if they are accountable to the public interest and to legitimate sources of legal and political authority at all times, even when the written rules are ambiguous and even when they could probably get away with merely self-serving behavior.”

This cuts to the core of the problem that the next President will face: After 8 years of disregard for the rule of law at the highest level of government, how can we instill new norms and expectations throughout the Federal Government? Stating that commitment in the inaugural address will go a long way in that direction.

But it is not only a matter of a new President saying. “OK, I won’t do that anymore.” This President’s transgressions are so deep and the damage to our system of government so extensive that a concerted effort from the executive and legislative branches will be needed. And that means the new President will, in some respects, have to go against his institutional interests–a challenge that we cannot underestimate.

That is why I called the hearing last week on this topic–to hear from legal and historical experts on how the next President should go about tackling the wreckage that this President will leave behind. I asked witnesses to be forward-looking–not to simply review what has gone wrong in the past 7 or 8 years, but to address very specifically what needs to be set right starting next year and how to go about doing it. In addition to the testimony of the witnesses at the hearing, I solicited written testimony from advocates, law professors, historians and other experts. I was pleased that we received nearly 30 written submissions from a host of national groups and distinguished individuals.

At the hearing, we heard testimony from one of the foremost legal scholars in the country about just how far outside mainstream legal thought the current administration went. We heard comparisons to the events leading up to the Church Committee’s investigation in the 1970s, from the man who served as chief counsel to that committee. We heard from a former Republican Member of Congress about Congress’s failure to assert itself as a coequal branch of government. We heard from the former head of the Justice Department’s office of legal counsel about the perversion of the law that was allowed to occur in that important office. We heard from a former White House chief of staff about the dangers of the excessive executive secrecy that permeated the government under this administration. We heard from a leading national security lawyer about the harm that post-9/11 domestic surveillance policies have done to our national security. And we heard from the head of one of the leading human rights organizations about the damage our interrogation and detention policies have done to our reputation abroad.

But most importantly, we heard from every one of these individuals their specific prescriptions for moving beyond these mistakes–for taking the steps that are necessary to restore our core American principles.

Indeed, between the hearing witnesses and the written testimony that was submitted, the subcommittee received an enormous number of recommendations, including many provocative and important ideas. They range from the general to the very specific, and they cover a variety of subject matters, from government secrecy to detention and interrogation policy to surveillance to separation of powers. I am very pleased that so many experts took the time to offer these proposals.

Let me take a few minutes today to share some examples of the kinds of recommendations that the witnesses provided, both those who testified at the hearing and those who submitted written testimony. Several suggestions reinforce my belief that the new administration must set a clear tone of adherence to the rule of law from the start. Mark Agrast of the Center for American Progress Action Fund suggests that the President should convene a White House conference on the rule of law, and pledge to work with Congress to give priority to measures to restore public confidence in the rule of law. Former Solicitor General Walter Dellinger argues that:

“[T]he next President should ….. affirmatively adopt a view of presidential power that recognizes the roles and authorities of all three co-equal branches and that takes account of settled judicial precedent.”

Many of our witnesses are concerned about the impact of the last 8 years on the separation of powers, and specifically about Congress’s failure to stand up to the president as he asserted more and more unconstrained power. Several strongly suggest oversight and investigative hearings to determine what exactly happened. Frederick Schwarz of the Brennan Center suggests an independent, bipartisan, investigatory commission to assess what has gone wrong and what has gone right with the Nation’s policies concerning terrorism. Such a commission would allow the public to get the full story of the abuses of the Bush administration, providing accountability and a mechanism for developing protections against future abuse that can be implemented by the executive and legislative branches. The ACLU suggests more narrowly focused oversight hearings in Congress to reveal illegal or improper executive branch activity, and argues that Congress must deny funding for programs it believes are abusive or illegal.

Former Congressman Mickey Edwards, a Republican from Oklahoma, also argues that Congress must use the power of the purse to assert its will in interbranch disagreements. He believes that Congress should aggressively utilize its subpoena power to get the information it needs. Being able to enforce congressional subpoenas, of course, is an important component of oversight, and several witnesses had suggestions on that topic. Common Cause believes that the next president should issue an Executive order mandating Federal agencies’ complete cooperation with congressional investigations. University of Pennsylvania Law Professor Seth Kreimer argues that officials who ignored legitimate congressional subpoenas should be prosecuted. The Center for Responsibility and Ethics in Washington suggests that Congress enact legislation granting jurisdiction to the Federal courts over cases seeking enforcement of congressional subpoenas. And Bruce Fein, a former Reagan administration official, believes a special three-judge court should be created that could appoint an independent counsel to enforce contempt findings against the executive branch since the Department of Justice refused to enforce congressional subpoenas during this administration.

Many of the suggestions from our witnesses focus on the decisionmaking of our national security agencies. Stephen Aftergood of the Federation of American Scientists suggests enhancing oversight of intelligence agencies by using cleared auditors from the GAO. And Mark Agrast advocates establishing a national security law committee within the National Security Council to make decisions on legal issues related to national security.

A crucial part of restoring the rule of law in the next administration will be rebuilding the reputation of the office of legal counsel. Walter Dellinger, joined by a prestigious group of former OLC attorneys, provided detailed testimony on how that can be done. The incoming attorney general should pay very close heed to this advice.

Another issue that almost every person or group mentioned in their submissions is the problem of excessive government secrecy. This problem permeates all of the other rule of law issues discussed at the hearing. When the executive branch invokes the state secrets privilege to shut down lawsuits, hides its programs behind secret OLC opinions, overclassifies information to avoid public disclosure, and interprets the Freedom of Information Act as an information withholding statute, it shuts down all of the means to detect and respond to its abuses of the rule of law–whether those abuses involve torture, domestic spying, or the firing of U.S. attorneys for partisan gain.

With regard to this administration’s overuse of the state secrets privilege, University of Chicago law professor Geoffrey Stone and many others recommend that Congress pass S. 2533, the State Secrets Protection Act, which was reported out of the Judiciary Committee in April. The bill takes the simple and obvious step of requiring courts to review allegedly privileged documents to determine whether they really are privileged.

To address the rampant problem of overclassification, several submissions, including that of John Podesta from the Center for American Progress Action Fund, urge the next President to rewrite the executive order on classification to reverse some of the changes made by President Bush to that order. In particular, President Bush eliminated provisions that established a presumption against classification in cases of significant doubt, that permitted senior agency officials to declassify information in exceptional cases where the public interest in disclosure outweighs the need to protect the information, and that prohibited reclassification of materials that have been released to the public. Contributors argue that these provisions be restored.

On the issue of secret OLC opinions and other manifestations of secret law, there is general agreement that legislation is needed to require greater disclosure of the law under which the executive branch operates. A number of submissions recommend the passage of 2 bills I introduced this year: the Executive Order Integrity Act, which requires the president to publish notice in the Federal Register when revoking or modifying a published Executive order, and the OLC Reporting Act, which requires the Attorney General to report to Congress when the Department of Justice concludes that the executive branch is not bound by a statute.

Finally, the National Security Archive and others address the proper standard for disclosure of information under the Freedom of Information Act. Attorney General Reno issued a memorandum in 1993 that contained a “presumption of disclosure”: even if a document was technically exempt from disclosure under FOIA, the Department of Justice would defend the withholding only if disclosure would actually harm an interest protected by the exemption. Attorney General Ashcroft reversed that presumption in 2001. Contributors uniformly recommend that the new administration immediately restore the presumption of disclosure.

The subcommittee also received numerous recommendations for reforming our detention and interrogation policy. Detailed plans for accomplishing the difficult task of closing the detention facility at Guantanamo Bay were presented by Elisa Massimino of Human Rights First, by the Center for Strategic and International Studies, by Harold Koh, and by a group of 20 leading scholars. There is near-universal agreement that Guantanamo should be closed. These thoughtful proposals deserve careful consideration. A number of groups also recommend dismantling the current system of military commissions, and instead trying terrorist suspects in U.S. courts or military courts-martial.

With respect to interrogation practices, Princeton’s Deborah Pearlstein and others argue that the U.S. Government should have a single, government-wide standard of humane detainee treatment. Massimino suggests that the President and the Congress should invest in efforts to pursue the most effective and humane means of intelligence gathering. And Harold Koh emphasizes the importance of fully complying with obligations under the Geneva Conventions and the Convention Against Torture.

And finally, a number of recommendations were made on government surveillance and privacy issues. National security lawyer Suzanne Spaulding argues that the next administration should undertake a comprehensive review of domestic intelligence activities and authorities, to assess their effectiveness and to ensure that they support, rather than undermine, the rule of law. She points to a number of key issues for review, many of which were also mentioned in other submissions as issues where changes need to be made.

These include the Foreign Intelligence Surveillance Act and the related amendments made this summer; national security letters and other Patriot Act authorities; the first amendment implications of domestic spying activities; data mining and other data collection and analysis activities; profiling in the name of counterterrorism; the appropriate role of the many Federal, State and local entities that are now involved in domestic intelligence gathering; and the need to enhance transparency and oversight in all of these areas. This is a long list, but Spaulding argues that too many of these powers were created piecemeal, without consideration of how they fit together and without adequate consideration for the need to respect civil liberties.

This is just a sampling of the careful and interesting proposals that the subcommittee received. Taken together, these recommendations should serve as an excellent source for both branches of government. While I am not at this time going to propose a specific plan of action to the next President or the next Congress, I am reviewing the legislative proposals that have been submitted, and I hope my colleagues will take advantage of them as well. I thank each and every person who made the effort to submit these recommendations. They have done this country a real service.

In January, I intend to present the full hearing record to the new President, and urge him to take specific actions to restore the rule of law. These recommendations should serve as a blueprint for the new President so that he can get started right away on this immense and extremely important job of restoring the rule of law.

It will not be easy. Even those steps that are almost universally agreed upon, such as the necessity of closing the facility at Guantanamo Bay, pose tricky legal and practical questions. And, of course, there may be institutional resistance within the executive branch to actions that are viewed as ceding power to the other branches of government, no matter how unprecedented the executive power theories that need to be undone. But as Suzanne Spaulding explained at the hearing:

“We have to demonstrate that we still believe what our founders understood; that this system of checks and balances and respect for civil liberties is not a luxury of peace and tranquility but was created in a time of great peril as the best hope for keeping this nation strong and resilient.”

This is an important point, because the polices pursued by this administration have not kept this Nation “strong and resilient.” They have undermined national unity, diminished our international standing and alliances, and hurt our efforts to counter the serious threat we face from al-Qaida and its affiliates. By putting policies in place that accord with basic American principles, we can strengthen our national security as well.

As I said at the outset, it is the years that follow a crisis that may matter most, that are the true test of the strength of our democracy. So I hope that the next President will carefully review the many recommendations that have been presented, because the future of our democracy depends on it.

In this speech Senator Feingold puts it all the pieces together, cataloging what we’ve lost over the past two presidential terms and what we have to do to get it all back. But even all this is only a summary of the work Feingold’s done in bringing together experts in his Rule of Law hearings. To access the extensive written and spoken testimony of the Rule of Law hearings this month, visit Russell Feingold’s dedicated webpage here.

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